Environmental Law in the Law Schools: What We Teach and How We Feel About It

Joseph L. Sax

Mr. Sax is the James H. House and Hiram H. Hurd Professor of Environmental Regulation at the University of California-Berkeley's Boalt Hall Law School. He was the 1985 recipient of the Environmental Law Institute Award, for outstanding contributions to environmental law and policy.

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Some months ago the editors of ELR asked me to write an essay on the status of environmental law in the law schools. I considered simply describing the progress of my own life and not-so-hard times as a teacher since 1966, when I first put together a course called "Conservation and the Law" at the University of Michigan. I soon decided that a report from the front lines would be more suitable.

I wrote to every listed teacher of environmental law. Seeking a reflective rather than a statistical response, I posed the following question: Since our students will not only be the practicing lawyers of 1990, but will be in their professional maturity in 2020, what is it you want them to take away from your courses?

Most Law Professors Are Discouraged

Letters poured in, nearly a hundred of them. Bewilderment and frustration were the most common themes.

The subject seems to have overwhelmed us. Virtually every law teacher — however broad his or her outlook — wants to introduce students to the specific material in the field, and to provide some experience and familiarity with it. Yet, every such attempt is an encounter with statutes of numbing complexity and detail. My respondents did not find their unease markedly alleviated when they shifted (as most had) from broad survey courses to those that focused primarily on one illustrative statute, usually the Clean Air Act.

Does Environmental Law Help the Environment?

Complexity as such does not seem to be the problem. Lawyers enjoy puzzles. What discourages law teachers is rather a sense of being drawn into a system in which enormous energy must be expended on something that is ultimately vacuous. As I read the letters, I imagined spending years learning the minutiae of an extraordinarily difficult language, only to find, at the end, that it wasn't a language of communication at all, but just empty babble. My former colleague Jim Krier at the University of Michigan spoke for many when he said:

Environmental law has come to be a bore … if the idea is to "teach" the "law" that we find in the "books." There is too much junk there, too many details…. Project this picture a bit and what you have for the future … is a bunch of lawyers who don't really know anything worth knowing.

A common adaptation to this state of affairs is to make the best of a bad thing. Environmental regulatory laws can be used to teach about the administrative process, judicial review, or techniques of statutory analysis. Some among us, however, doubt that they are well suited even for that purpose. John Leshy of Arizona State observed:

Frankly, I dislike teaching [the pollution side of environmental law]…. It is mostly just administrative law in an environmental context…. I found it difficult to identify, much less organize a coruse around, some over-arching themes in the regulatory patterns. They seem to me to be quite ad hoc … bureaucratic responses to pressing problems.

I sense that my colleagues would be more tolerant of the current laws if they were convinced that, for all the limitations of the regulatory genre, those statutes represented a best effort to cope with terribly difficult dilemmas — if they were persuaded that we were at least inching along in the right direction.

But that is not the case. Arnold Reitze at George Washington University, one of the most experienced observers of the environmental scene, captured what is bothering a number of teachers in his recent article that he sent along as part of his answer to my survey.¹ We have been spending huge sums on marginally effective programs of pollution control, he says, and we are reaching the limits of our capacity to do even that. Meanwhile, the fundamentals are unattended:

From the beginning, the impacts of population and consumption have been ignored…. [T]here is no consensus that they are problems, let alone problems in need of solution. So Congress focused on the obvious … pollution, which is the least important of the three causes of ecosystem degradation.²

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The sense of discouragement that emerges so strongly from many of the letters I received grows out of a paradox implicit in the Reitze article, and made explicit in comments sent to me by David Getches of the University of Colorado. He observes that we have more and more "environmental artillery": more lawyers working on problems that seem increasingly sophisticated, with ever greater economic stakes, and at the same time ever greater attenuation from the ultimate causes and concerns that gave rise to the field. "Lawyers in great numbers are finding jobs 'doing environmental law,'" he says. But "law, lawyers, law schools, and law students seem to have so little to do with the environment" as seen by knowledgeable people. Getches describes a visit to a Smithsonian official who "sees problems of the environment on a continuum that includes exploitation of forest products and fossil fuels, soil erosion and flooding of fertile lands, displacement of indigenous people and desertification, overpopulation and waste production, international financial policy and political instability, biological diversity, and food production." Even recognizing that the lawyer's role is usually involvement in a particular case, where change is incremental rather than global, Getches ends by asking whether our graduates working on Resource Conservation and Recovery Act or Superfund cases can properly feel that they are at all in touch with the fundamental causes and cures of our environmental afflictions. This being the common perspective, it was not surprising that there was scant mention of mode-of-regulation changes, such as a shift to economic incentives, as offering a way out of the deeper dilemma that many respondents identified.

Is the Answer a More Global Perspective?

A large number of letters predicted that international problems and global perspectives would become increasingly important. But very few teachers have made such issues central to their teaching, and most left the impression that while they see a global perspective as appropriate, they do not quite know how to bring it to bear in the classroom. There are exceptions, most notably Nick Robinson at Pace University, who clearly sees a future "of internationally arrived at environmental protection agreements which will be implemented and enforced locally … to assure uniformly effective environmental protection across national frontiers."

If I have so far given the impression that the majority of responses I got were on the downbeat side, I have not misrepresented. Indeed, a handful of letters came from people who had simply abandoned the field in frustration. A handwritten note from a pioneer environmental law teacher says "the enclosed picture [of a hunter shooting a bison at close range as it exits Yellowstone] says why I am no longer teaching environmental law…. The picture says what has changed: basically nothing…. I admire your perseverance." Another teacher admired my "temerity," which I do not think was meant as a compliment. Still another ended his letter saying "maybe I should teach them about prayer and fasting."

Toward Better Environmental Law Education

I do persevere, and while I am not the only optimist among us, my survey shows that I am in the minority. I continue to believe that environmental law offers to teachers two distinct paths that remain intellectually lively, ethically acceptable, and professionally pertinent. I would like to say a little about each of them, using my own courses as examples.

The Semester-Long Case Study

The first path begins with the law as it is. I might say I agree with those who find it numbingly complex and far from engaged with the issues at the core of our environmental dilemma. Yet, as teachers in a professional school, we are in some ways up against it. Our students will soon be working on the system as it is, and we need to help them cope with it even when it seems to have gone astray. I do not shrink from that task, but neither do I consider it essential to offer wide-ranging survey or specialized courses.

More importantly, we need to help them understand how and why the system has gone astray, and to enable them to try their own hand at it when their time comes. I believe it is possible to familiarize students with the law as it is and at the same time position them to be able to appraise the value and efficacy of the system, bringing an informed and independent perspective to it.

Here at Berkeley my colleague John Dwyer and I have been teaching a water pollution seminar that consists of a semester-long case study of the effort to control toxic metals at a single industrial facility, the Chevron refinery in Richmond, California, on San Francisco Bay. In the course of the semester we require a series of written exercises from the students so that they learn to deal as lawyers with the state and federal statutes, the regulations, Environmental Protection Agency (EPA) guidance documents, the state's basin plan, and other such materials of the sort that Earl Murphy of Ohio State calls "fiendishly technical."

Our students follow the detailed history of the Natural Resources Defense Council's (NRDC's) efforts to get EPA to regulate toxics, beginning with the original, ineffective § 307 of the Federal Water Pollution Control Act (FWPCA), and culminating in a court decree and the 1977 FWPCA amendments. They then see the "fruits" of that effort in a 1988 stipulated dismissal of a suit challenging renewal of Chevron's permit. And they meet the players: Chevron officials, local citizen activists who sued and then negotiated a settlement with Chevron, an NRDC lawyer, a state legislator who is introducing toxics legislation, and the state officials who write Chevron's permit. We follow each turgid detail of the 12-year concerted effort to control metals at the Chevron refinery, a primary result of which was the construction of a pipeline to move discharges from a shallow slough out to the middle of the Bay where they would get greater dilution.

All this detail, however, serves our purpose as teachers. It is set into a focus on the San Francisco Bay as part of a vast watershed that includes the San Joaquin and Sacramento Rivers, California's agricultural heartland. We observe the contribution of urban runoff to Bay problems. We have gone to a legislative hearing on Bay pollution. We devote one of our exercises to tracing the mostly moribund history of nonpoint source controls, and we parse Congress' periodic stabs at the problem. We take at least a brief look at the very different ecology of the South Bay, where municipal treatment plants dominate. And we meet [19 ELR 10253] representatives of a group that has researched and is actively promoting source reduction in water, air, and solid waste areas as the key to toxics control.

Our hope is that students come away from the seminar with some pretty solid impressions of how the bureaucracy (in this case the Regional Water Board staff) works, of the role of an active and sophisticated local citizen group (Citizens for a Better Environment in San Francisco), a national group (NRDC), and an industry that has, over the years, shifted from being quite recalcitrant to wanting to be a publicly admired pacesetter.

To the exent that we succeed in the seminar, we leave the students with enough knowledge about one characteristic pollution control problem to let them make their own informed judgment about the efficacy of a major regulatory statute. We try to give them enough sense of the vastness and complexity of the "real" resource, the watershed, to appreciate what it means to get to the root of an environmental problem. We hope they have some sense of what Reitze means when he talks about consumption as central to environmental problems. They can go down to the waterfront and see for themselves the demands that modern agriculture, growing cities, and contemporary industry impose on San Francisco Bay.

I believe that an offering of this sort serves our role as a professional school without sacrificing our role as teachers in a serious university — giving the students the wherewithal not only to function as lawyers, but to understand what lies beneath the outer skin of the legal world in which they will be working for the foreseeable future.

The case study technique that John Dwyer and I have been using works for us. Others have a quite different focus, some sweeping more ambitiously than we do, but also looking at legal problems intensively and in the context of a natural resource system. Howard Latin at Rutgers reports satisfaction with an "in depth" treament of the FWPCA that gives students

a pretty good understanding of the competing regulatory strategies, scientific and economic uncertainties, costs, conflicting interests, social consequences, and political compromises that have influenced the regulatory process.

Charles Wilkinson of the University of Colorado describes his advanced seminar as follows:

The subject matter, which changes annually, is not defined by legal doctrine … [but by] geographical and biological classifications … for example the Rio Grande River Basin … the Greater Yellowstone Ecosystem … the Wolf; the Grizzly Bear. The course begins with a study of historical, literary and scientific materials. Students then move to analysis of current problems … such as … wildlife habitat, water quantity … land use planning, pollution control….

A different and imaginative approach is taken by Carol Rose of Northwestern:

My fix on the subject is that it is about resource management, and particularly about management of resources in the state of a "commons." … [After looking at the various strategies for managing a commons advantageously] I go through the major existing statutes … and try to identify the different resource management strategies in each…. I figure that this approach ties together some commonalities in existing statutes, and also sets out a way for analyzing new statutes that come cown the pike…. This commons management approach, I think, also gets at the heart of the reasons we have environmental problems, alerts students to potential new problems, and gives them a repertoire of ways to think about managing them.

From Pollution Law to Natural Resources Law

The second path to successful environmental teaching seems to lie not in pollution law at all, but rather in shifting the focus to natural resources law.

As teachers in a professional school, our course offerings are inevitably driven to some extent by the issues that engage contemporary practice. Environmental law has largely become pollution law, and pollution law has failed to open new legal vistas or to engage environmental issues deeply. Many of the most positive responses I received came from teachers who had shifted their focus from conventional pollution regulation toward natural resources law. Far-reaching changes are underway there and it offers rich opportunities to set problems in an ecosystem context. Traditional notions of property are being fundamentally reexamined in areas such as wetland regulation, wildlife management, forest regulation, water resources, endangered species, and public land law. These are fields where public trust and sustainable development notions are being aired, and where commons management is becoming a reality.

It may well be that the intellectual energy to fuel the next generation of environmental law will come from developments such as the emerging "law of the grizzly bear" in public land management, or from the transformation that instream flow requirements are bringing to the traditional property regime in water. These are the places where we are beginning to see things whole. Perhaps we will find in them clues to managing larger problems that defy traditional legal rules, such as deforestation, climate change, and the loss of biological diversity.

I have been teaching a course called "Environment and Culture: Protection of our Heritage," in which I am making some first fumbling efforts to look at what we preserve as the essential legacy of a sustaining civilization. I begin by asking why it has seemed so important to us to protect against species extinction, and from there I try to elicit some principles for setting priorities governing both natural and cultural resources, including communities of indigenous peoples, historic and artistic treasures, and the materials of scientific inquiry.

This still-emerging course is part of my response to the bewildering question of how shall we help our students prepare for the world of their mature years. I know it is only one among a multitude of possibilities, and I know it reaches only one part of the challenges of consumption and industrialism, population and technology, and the possibility of catastrophe. I have no conviction that I am on the most important track, or even on a right track. But I am confident that we do not lack the opportunity to keep ourselves and our students professionally and intellectually engaged in addressing the fate of the earth.

1. Reitze, Environmental Policy — It is Time for a New Beginning, 14 COLUM. J. ENVTL. L. 111 (1989).

2. Id. at 119-20.